Bing v. Brivo Sys., LLC

• Decision Date: 19 May 2020
• Docket Number: No. 19-1220,19-1220
• Parties: Robel BING, Plaintiff - Appellant, v. BRIVO SYSTEMS, LLC, Defendant - Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

959 F.3d 605

Robel BING, Plaintiff - Appellant,

v.BRIVO SYSTEMS, LLC, Defendant - Appellee.

No. 19-1220

United States Court of Appeals, Fourth Circuit.

Argued: December 11, 2019

Decided: May 19, 2020

ARGUED: Dena Elizabeth Robinson, PUBLIC JUSTICE CENTER, Baltimore, Maryland, for Appellant. Edward S. Schenk, III, WILLIAMS MULLEN, Raleigh, North Carolina, for Appellee. ON BRIEF: Ejaz H. Baluch, Jr., Murnaghan Appellate Advocacy Fellow, PUBLIC JUSTICE CENTER, Baltimore, Maryland, for Appellant. Joseph R. Pope, WILLIAMS MULLEN, Richmond, Virginia, for Appellee.

Before AGEE and QUATTLEBAUM, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by published opinion. Senior Judge Traxler wrote the opinion for the court as to Parts I and II, in which Judge Agee and Judge Quattlebaum joined. Judge Quattlebaum wrote the opinion for the court as to Parts III and IV, in which Judge Agee joined. Senior Judge Traxler wrote a separate dissenting opinion as to Parts III and IV.

TRAXLER, Senior Circuit Judge, writing for the Court in Parts I and II:

Robel Bing, an African-American male, was hired by Brivo Systems, LLC, but fired shortly after starting orientation on his first day of employment. Bing subsequently filed a pro se action asserting that he had been discriminated against because of his race in violation of Title VII, 42 U.S.C. §§ 2000e to 2000e-17. The district court dismissed the case without prejudice, concluding that Bing failed to plead sufficient facts to plausibly support a claim of discrimination. Bing appeals.¹

As we will explain, we have appellate jurisdiction despite the district court’s dismissal of the complaint without prejudice. On the merits of the appeal, a majority of the panel concludes that the district court did not err by dismissing the Title VII claims at this point in the proceedings, and the district court’s decision is therefore affirmed.

I.

Because this is an appeal from the granting of a Rule 12(b)(6) motion to dismiss,² we accept as true the facts alleged in Bing’s pro se complaint and construe the facts in the light most favorable to Bing. See, e.g. , In re Willis Towers Watson plc Proxy Litigation , 937 F.3d 297, 302 (4th Cir. 2019).

Bing applied for employment as a "customer care representative" with Brivo. He disclosed his prior criminal history as part of the application process. Bing was interviewed in person by two Brivo employees on September 27, 2016 and was extended a job offer on September 28. Bing did not disclose his race on his application, but the Brivo employees who hired him learned of his race during his interview.

The job offer was subject to Bing passing a background check. Bing passed the background check, and his first day of employment was October 17, 2016. When Bing arrived for a new-employee orientation on his first day, he was met by Charles Wheeler, a white male who had not previously been involved in Bing’s hiring. Wheeler was introduced to Bing as Brivo’s "Security Architect." J.A. 14. Within an hour of starting orientation, Wheeler approached Bing and confronted him about a Baltimore Sun article that Wheeler had found after running a Google search on Bing. The article reported Bing’s tangential involvement in a shooting for which he faced no charges.³ Wheeler berated Bing about the incident, declared that he was not fit for employment with Brivo, terminated him on the spot, and escorted Bing out of the building.

Bing filed a charge of discrimination with the Equal Employment Opportunity Commission and received a Notice of Right to Sue letter. He subsequently filed a timely complaint in federal district court alleging unlawful termination and "harassment/discrimination" under Title VII. J.A. 9.

In his complaint, Bing alleged that Wheeler performed a Google search on him after Bing had completed his background check and received an offer of employment. According to Bing, the search "serve[d] as [a] means for discrimination of protected groups, by allowing personal and perhaps implicit biases to explicitly permeate the work environment." J.A. 16. Bing stated that he could "find nothing other than [his] (possibly unexpected) physical appearance as an African-American male, to explain actions of race (African-American) and sex (male) discrimination, initiated by Mr. Wheeler, whose actions clearly fell outside of established Brivo hiring processes." J.A. 16. Bing’s complaint "question[s] whether or not Brivo can provide historical documentation to replicate my hiring experience, or at the very least, demonstrate that they have a common hiring practice of conducting ancillary ‘Google searches’ of employees’ names on the first day of employment with the company." J.A. 16.

The district court granted Brivo’s motion to dismiss for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). The court concluded that Bing "proffered no facts allowing a plausible inference that his discharge was fueled by unlawful discrimination." J.A. 176. In the court’s view, the facts asserted by Bing showed the absence of any discrimination:

[T]he Complaint avers facts establishing that he was terminated because of his involvement in the shooting incident – the veracity of which Bing confirmed. By contrast, no evidence exists by which this Court could infer Bing was terminated on account of race or gender. Brivo concluded that Bing’s involvement in the firearm incident rendered him unfit for the position. Nothing about this determination, based on the facts averred in the Complaint, demonstrates that this reason was put forward to obscure Brivo’s discriminatory animus.

J.A. 176.

In its memorandum opinion, the district court stated that the complaint was dismissed without prejudice. By separate document denominated as an order, the court officially granted the motion to dismiss, stated that Bing’s complaint was dismissed, and directed the Clerk’s Office to close the case. The order did not qualify the dismissal; it dismissed the complaint without specifying whether the dismissal was with or without prejudice.

II.

Before reviewing the merits of Bing’s appeal, we must establish that we have appellate jurisdiction. Subject to certain exceptions not present here, this court has jurisdiction only over appeals from final orders. See 28 U.S.C. § 1291 ("The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts ....").

Although the district court dismissed Bing’s complaint, it did so "without prejudice." This disposition raises questions about the finality of the dismissal order, as "[d]ismissals without prejudice naturally leave open the possibility of further litigation in some form." Go Computer, Inc. v. Microsoft Corp. , 508 F.3d 170, 176 (4th Cir. 2007). As we have explained, what makes an order of dismissal without prejudice "final or nonfinal is not the speculative possibility of a new lawsuit, but that they end the litigation on the merits and leave nothing for the court to do but execute the judgment." Id. (internal quotation marks omitted).

In Domino Sugar , we adopted the rule that dismissals without prejudice generally are not appealable "unless the grounds for dismissal clearly indicate that no amendment in the complaint could cure the defects in the plaintiff’s case." Domino Sugar Corp. v. Sugar Workers Local Union 392 , 10 F.3d 1064, 1067 (4th Cir. 1993) (internal quotation marks and alteration omitted). The Domino Sugar rule "requires us to examine the appealability of a dismissal without prejudice based on the specific facts of the case in order to guard against piecemeal litigation and repetitive appeals." Chao v. Rivendell Woods, Inc. , 415 F.3d 342, 345 (4th Cir. 2005).

When determining the finality of a dismissal without prejudice, we have considered various factors, including the bottom-line effect of the district court’s ruling, see Domino Sugar , 10 F.3d at 1067 ("The clear import of this order required the Company to pursue remedies within the CBA before filing suit in court. In other words, the district court essentially made a final ruling that the Company had to proceed to arbitration before seeking judicial relief."); and whether the court dismissed the complaint only, as opposed to dismissing the action entirely, see Chao , 415 F.3d at 345 (explaining that the dismissal of an amendable complaint generally is not appealable while dismissal without prejudice of the entire action generally is appealable). We have also held that when the plaintiff elects to stand on the complaint, a dismissal without prejudice is final, as the plaintiff’s election amounts to waiver of any right to amend and "protect[s] against the possibility of repetitive appeals that concerned us in Domino Sugar ." Chao , 415 F.3d at 345 ; see also In re GNC Corp. , 789 F.3d 505, 511 n.3 (4th Cir. 2015) (concluding that order dismissing complaint without prejudice and expressly authorizing an amended complaint was a final, appealable order because the plaintiffs declined to amend the complaint: "Because of Plaintiffs’ waiver [of the right to amend], we treat this case as if it had been dismissed with prejudice and therefore have jurisdiction over this appeal."); United States ex rel. Badr v. Triple Canopy, Inc. , 775 F.3d 628, 633 n.2 (4th Cir. 2015) (exercising jurisdiction over appeal from dismissal without prejudice because the government and qui tam relator "elected to stand on their complaints and waived the right to later amend" (internal quotation marks omitted)), cert. granted, judgment vacated on other grounds and remanded for further consideration , ––– U.S. ––––, 136 S. Ct. 2504, 195 L.Ed.2d 836 (2016).

In our view, the rules announced in the above-cited cases establish that the without-prejudice dismissal at issue in this case is a final, appealable order. The district court concluded that the factual allegations in the complaint were insufficient to support Bing’s theories of...